Thursday, December 31, 2015

Four percent more law enforcement officers at the
federal state, territorial and local levels died in the line of duty in 2015
than in 2014, according to a preliminary report from the National Law
Enforcement Officers Memorial Fund, according to National Public Radio.

But despite several high-profile shootings of police
in 2015, the group also says more officers died in traffic-related events (52)
than from gunfire (42).

The number of police officers killed by gunfire fell
14 percent from the 49 who were shot and killed in 2014. Seven of those
shootings followed traffic stops; six were surprise attacks on officers, such
as the Aug.
29 slaying of sheriff's Deputy Darren Goforth at a gas station in
suburban Houston.The 2015 figures released this week are
in rough proportion to recent annual reports from the nonprofit NLEOMF, which
says that in 15 of the past 20 years, traffic-related incidents have been the
leading cause of death for officers killed in the line of duty.

Wednesday, December 30, 2015

Apparently, America is losing its stomach for
state-imposed death—if prompted by the injection of lethal drugs into the body
of the condemned. However, if death is the result of a long, lonely, pointless
life behind bars, America is still on board.

Many opposed to the death penalty are celebrating
what appears to be the beginning of the end of capital punishment. However,
there is another kind of death penalty thriving in America: Life in prison
without the possibility of parole— a more subtle, yet real, sentence of death.

There are about 3,000 inmates on death rows around
the U.S. According to the Sentencing
Project, more than 49,000 men and women are serving life without parole.
Life sentences have increased 22.2 percent since 2008, because death penalty
abolitionists have successfully argued for life in prison as an appropriate
alternative to the death penalty.

This year will end with 28 executions—the fewest in
nearly a quarter century. The death penalty has been under siege for several
years. A number of states—Connecticut, Illinois, Maryland, New Jersey, New
Mexico, New York, and Nebraska—have recently abandoned capital punishment. The
governors of four other states—Colorado, Oregon, Pennsylvania, and
Washington—have imposed execution moratoriums.

Three states—Texas, Missouri and Georgia—accounted
for 86 percent of all executions in 2015; yet about 61 percent of Americans
continue to support the death penalty, according to a recent Gallup poll.

Just like the death penalty a handful of
states—Florida, Pennsylvania, Louisiana, California, and Michigan—account for a
majority of all life-without-parole sentences nationwide.

The argument has long been made that the U.S. is the
only developed Western country still executing prisoners, often comparing
America to countries such as China, Iran and North Korea.

The same can be said for life in prison without the
possibility of parole.

Almost all of the nations of Europe reject life
without parole; even lifers in China are eligible for parole after 25 years,
according to Prof. David R. Dow of the University of Houston Law Center,
writing in The Nation. And it should be noted that the U.S. is
the only country in the world that currently sentences juveniles to life
without the possibility of parole.
Approximately 2,570 inmates nationwide serve life-without-parole
sentences for crimes they committed as juveniles.

Even some death row inmates will tell you that life
in prison is no bargain. Sure, a life sentence—like a death sentence—is likely
to end in a prison death; but lifers have few of the procedural rights and
opportunities for review afforded death row inmates.

Death by execution, as opposed to death by the
passage of time, is different. Those subject to the death penalty have
what is referred to as “super due process.” The condemned have legal counsel
appointed to represent their interests throughout the process. A person
sentenced to die in prison receives only one automatic appeal, and is not
provided court-appointed counsel after the appeal is complete.

Andrew Dilts, an assistant professor of political
theory at Loyola Marymount University, wrote in Death and Other Penalties: Philosophy in a Time of Mass
Incarceration that life without parole appeases the “almost
fetishistic levels” of concern over execution while it “effectively deflects
attention away from the moment of death, even though death is necessarily a
part of the sentence.”

The result, according to Stephen Lurie in the New
Republic, is simply a “dramatic reduction of appellate rights” for inmates who
are still condemned to die. It’s a slower death with even less chance for
redemption.

Therein will be the rallying cry for criminal
punishment reformers. As the death penalty disappears, super due process
will be demanded for those now facing America’s most severe sentence: life
without the possibility of parole.

Eighth Amendment challenges, direct review,
bifurcated trials and unlimited collateral attacks await the “new” death
penalty—death by passage of time. Life without parole is the next
frontier for death penalty abolitionists.

Matthew T. Mangino is of counsel with Luxenberg,
Garbett, Kelly & George P.C. His book, “The Executioner’s Toll, 2010,”
was released by McFarland Publishing. You can reach him at www.mattmangino.com and
follow him on Twitter @MatthewTMangino. He welcomes readers’ comments.

Tuesday, December 29, 2015

There are concerns within the Office of Attorney General over the legality of state Attorney General Kathleen Kane's recently announced investigation of OAG emails by an out-of-state special prosecutor, sources have told The Legal Intelligencer.

The lack of a signed contract and signed secrecy oath have raised questions among OAG staff over whether Kane turning over more than 1 million emails to a special prosecutor, BuckleySandler attorney and former Maryland Attorney General Doug Gansler, could violate grand jury secrecy and the Criminal History Record Information Act, sources said. They expressed concern that the emails being reviewed contain confidential investigative information that should not have been released without a formal contract in place.

Gansler said he has not yet signed a formal agreement, but that it doesn't impede his ability to review the emails. He said he has received a hard drive containing every email from OAG servers since late 2008 and is in the process of winnowing the emails for relevance.

Gansler said he is in talks with an outside vendor to narrow the field of emails to those relevant to the investigation. His review could begin next week, he said.

Monday, December 28, 2015

Presidential Candidate Donald Trump in a speech in Ports­mouth,
New Hamp­shire, re­stated his sup­port for po­lice of­ficers and for the death
pen­alty for those who kill them. Then, according to The Atlantic, he ar­tic­u­lated a new pro­pos­al to demon­strate
that sup­port:

One of the first things I’d do in terms of ex­ec­ut­ive
or­der if I win would be to sign a strong, strong state­ment that will go out
to the coun­try, out to the world, that any­body caught killing a po­lice­man,
po­lice­wo­man, po­lice of­ficer, any­body killing a po­lice of­ficer: death
pen­alty. It’s gonna hap­pen. OK? We can’t let this go.

At least three prob­lems with this idea spring to
mind.

First, the U.S. Su­preme Court for­bade man­dat­ory
death sen­tences in 1976 with its rul­ing in Wood­son v. North Car­o­lina.
Cent­ral to the Court’s rul­ing was the justices’ op­pos­i­tion to pun­ish­ing
all mur­der­ers alike without re­gard for the ag­grav­at­ing or mit­ig­at­ing
cir­cum­stances of each case. But the justices also feared that man­dat­ory
death sen­tences would com­pel jur­ors to hand down not-guilty ver­dicts for
oth­er­wise guilty de­fend­ants who they did not think de­served to die. Al­though
Justice Clar­ence Thomas hin­ted at the pos­sib­il­ity of re­vis­it­ing Wood­son in
his Glos­sip v. Gross con­cur­rence in June, the oth­er justices did
not seem eager to do so.

Second, the death pen­alty is largely ad­min­istered
by the states, not the fed­er­al gov­ern­ment. Roughly 3,000 in­mates cur­rently
sit on death row in the United States; only about 60 of them are in the fed­er­al
sys­tem. Pres­id­ent Trump would have no law­ful power to in­flu­ence state
crim­in­al-justice sys­tems, wheth­er by ex­ec­ut­ive or­der or any oth­er mech­an­ism
at his dis­pos­al. Any ef­forts to the con­trary would vi­ol­ate the fed­er­al
char­ac­ter of the Con­sti­tu­tion.

Fi­nally, and most im­port­antly, the pres­id­ent
doesn’t have the law­ful power to uni­lat­er­ally im­pose a crim­in­al pun­ish­ment
on any­one, wheth­er it be a fine, a pris­on sen­tence, or death. Pres­id­ents
can wield the par­don­ing power to re­duce or re­move pun­ish­ments for fed­er­al
crimes, but they can neither in­crease nor en­act them. The Amer­ic­an leg­al
sys­tem del­eg­ates that re­spons­ib­il­ity to judges and jur­ies. In­fringing
on that sep­ar­a­tion of power through ex­ec­ut­ive or­der would, at min­im­um,
vi­ol­ate the Fifth and Four­teenth Amend­ments’ guar­an­tees of due pro­cess.

Saturday, December 26, 2015

The Court of Judicial Discipline has suspended Justice J. Michael Eakin on an interim basis with pay pending his trial on the merits over his involvement in the exchange of offensive emails, reported The Legal Intelligence. The suspension, the third of a sitting state Supreme Court justice since 2012, comes following a hearing Monday in which Eakin tearfully apologized and claimed that his lesson had been learned.

Eakin has been charged by the Judicial Conduct Board with four ethics violations over sending and receiving emails with sexist, racist and otherwise offensive content. The CJD's six-page per curiam order requests pretrial memoranda from both Eakin and the JCB by Jan. 11 and sets a pretrial conference for Jan. 21 in Harrisburg.

"The emails demonstrate that Justice Eakin participated in a pattern of not only ­receiving emails which were insensitive and inappropriate toward matters involving gender, race, sexual orientation and ethnicity, but also sending and forwarding a number of such emails," the order said.

At Monday's hearing, Eakin's defense before a three-judge panel of the court centered on the argument that his 20 years of opinion writing have been free of bias, but the court noted its concern at even the suggestion of such bias.

"There should be no doubt that this court is deeply and profoundly troubled by even a remote possibility that the patently discriminatory and offensive views and attitudes expressed in the emails underlying this case may have impacted Justice Eakin's judicial work," the order said.

Thursday, December 24, 2015

Imagine visiting your doctor and she recommends a
course of treatment but warns that the treatment has been applied with little
or no scientific validation and with inadequate research, assessments or
reliability.

Your doctor is telling you, let’s use this
treatment, but “neither I — nor anyone else — knows if it works.” No way — the
FDA, the Medical Society, even the National Academy of Sciences would never let
that happen.

Unfortunately, no one is preventing it from
happening on a regular basis in America’s courtrooms. The use of inadequately
tested or assessed courtroom evidence results in offenders being locked away
for years — in some cases for life.

Although there have been positive developments in
forensic science, the Innocence Project website suggests that forensic analysts
sometimes testify without a proper scientific basis for their findings.
Testimony about more dubious forensic disciplines, such as efforts to match a
defendant’s teeth to marks on a victim or attempts to compare a defendant’s
hair and hair found at a crime scene, are cloaked in science but lack even the
most basic scientific standards.

A joint effort by the FBI, the Innocence Project and
the National Association of Criminal Defense Lawyers examined the use of hair
evidence in criminal trials. The preliminary results announced this year
represent just a small percentage of the nearly 3,000 criminal cases in which
the FBI hair examiners may have provided hair analysis. According to the Washington
Post, of the 329 DNA exonerations to date, 74 involved flawed evidence
analysis.

In 2009, the National Academy of Sciences concluded
that, aside from DNA, there was little, if any, meaningful scientific
underpinning to many of the forensic disciplines.

Some would argue that the concerns with questionable
forensic evidence wash out when the state is forced to meet its overwhelming
burden of proof beyond a reasonable doubt.

However, there is psychological research that tends
to refute the notion that the prosecution pulls the heavy oar in criminal
cases, wrote Ninth Circuit Court of Appeals Judge Alex Kozinski. He recently
published an article in the Georgetown Law Journal providing 12 reasons we
should worry about the criminal justice system.

Kozinski’s former law clerk and blogger Eugene
Volokh serialized the article for the Washington Post. He wrote, we assume
juries go about deciding cases by accurately remembering all the testimony and
weighing each piece of evidence in a linear fashion . . . the reality may be
quite different. It may be that jurors start forming a mental picture of the
events in question as soon as they first hear about them from the prosecution
witnesses.

At times forensic evidence can go from bad to worse.
Chris Fabricant, director of strategic litigation for the Innocence Project
told The Associated Press, “Hair comparison analysis is practically DNA
compared to bite mark analysis.” Bite-mark analysis is the practice of
identifying alleged bite marks on human skin and then matching the pattern left
behind to a person’s dentition.

Mary Bush, a professor of dentistry at the State
University of New York at Buffalo found the two assumptions supporting
bite-mark identification--uniqueness of human dentition and human skin is a
good medium for transferring and preserving a bite-mark--are not supported by
evidence.

How does this evidence get in front of a jury?

The Federal Rules of Evidence allow expert testimony
if the conclusions are based on knowledge, skill, experience, training or
education in the techniques involved, and the specialized knowledge will assist
the judge or jury to understand the evidence or to determine a fact in issue.
The testimony must be based on reliable principles and methods, consistently
applied.

Barry A.J. Fisher, the retired director of the Los
Angeles County Sheriff’s Department Crime Laboratory, wrote in the New York
Times, the experts “should inform the court about the known error rates in the
procedure used, as well as the information about the procedures used to test
the evidence. This information will help the trial judge decide whether to let
a jury hear the expert’s opinion, and help jurors understand its reliability.”

Matthew T. Mangino is of counsel with Luxenberg,
Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was
released by McFarland Publishing. You can reach him at www.mattmangino.com and
follow him on Twitter @MatthewTMangino.

Wednesday, December 23, 2015

The Pennsylvania Supreme Court has upheld Gov. Tom Wolf's decision to grant a reprieve to death-row inmate Terrance Williams, while declining to address the propriety of Wolf's moratorium on the death penalty in Pennsylvania, reported The Legal Intelligencer.

All five justices of the state's high court agreed that Wolf had the authority to issue a reprieve in Williams' case. When Wolf announced the reprieve in February, he said he would grant a reprieve in each future scheduled execution while he awaits a report on the death penalty from a state task force.

"We find no limitation on the executive reprieve power relating to the duration of the reprieve, so long as it is temporary in nature and operates only for an interval of time," Justice Max Baer wrote for the court. "Additionally, we find no support for the proposition that the governor must provide a particular explanation for his reprieve for it to be constitutionally sound."

But Baer noted that the court was only addressing the constitutional validity of the Williams reprieve.

"Significantly, we further decline to address the propriety of Gov. Wolf's declaration in a press release that the issuance of a reprieve to Williams constitutes the first step in his executive policy of imposing a moratorium on the death penalty in Pennsylvania," he wrote. "Future challenges to reprieves granted by Gov. Wolf will have to await independent examination based upon our holdings herein."

Philadelphia District Attorney R. Seth Williams filed a petition seeking review of the decision using King's Bench jurisdiction. The justices granted his petition, but denied his request for an expedited review.

According to Baer's opinion, the prosecutors argued that the governor's reprieve power does not encompass the power to grant a reprieve for an unlimited duration of time and without a particular purpose. They also argued that a governor cannot declare a moratorium by calling it a reprieve.

The prosecutors said Wolf's moratorium violated Article IV, Section 2 of the state constitution, which says the governor "'shall take care that the laws be faithfully executed.'"

Tuesday, December 22, 2015

The gun control debate often plays out in monolithic fashion in this country, according to the Washington Post's Christopher Ingraham. The traditional understanding is that there's one overarching problem — gun violence — that can be addressed by a more or less uniform set of solutions: better background checks, improved technology, etc.

This approach makes a lot of sense. Many researchers argue that we should treat gun violence as just as much of a public health issue as a criminal justice one. That is, after all, the way we successfully reduced deaths from things like automobile accidents, cigarettes and the like.

But one shortcoming of this approach is that it elides over the sometimes drastic differences in how different populations experience gun violence and gun ownership in their lives. The Brookings Institution's Richard Reeves highlighted one stunning example of this in a recent blog post: Among whites, 77 percent of gun deaths are suicides. But among black Americans, 82 percent of gun deaths are homicides.

Monday, December 21, 2015

Radley Balko of the Washington Post wrote about the early stages of forensic science reform and the inherent problems with forensic evidence.

The problem with making judges the gatekeepers of scientific evidence is so ingrained in U.S. case law that it’s almost impossible to envision it changing. The best we can hope for is that judges start turning to the scientific community for guidance when determining what is and isn’t credible evidence, and that the scientific community take a more active role in assisting judges in such matters. So far, we’ve seen mixed results at best. With bite mark evidence, for example, the scientific community has pretty resoundingly stated that it’s a specialty supported by no scientific research whatsoever. Yet to date, every court in the country that has heard a challenge to the scientific validity of bite mark evidence has ruled against those challenges.

The other problem — cognitive bias — is the product of having crime labs report to police agencies, prosecutors, or other law-enforcement institutions. Cognitive bias can be minimized with some creative reforms like rivalrous redundancy, but so far, no jurisdiction in the country has attempted such reforms.

Sunday, December 20, 2015

For the first time in more than 60
years, firearms and automobiles are killing Americans at an identical
rate, say new mortality data from the Centers for Disease Control and
Prevention (CDC), reported the Washington Post.

In 2014, the age-adjusted death
rate for both firearms (including homicides, suicides and accidental deaths)
and motor vehicle events (car crashes, collisions between cars and pedestrians,
etc) stood at 10.3 deaths per 100,000 people. The convergence of the trend
lines is driven primarily by a sharp drop in the rate of motor vehicle
fatalities since 1950. In the late 1960s, there were well over 25 motor vehicle
deaths for every 100,000 people in the U.S. Since then, that rate has fallen by
more than half.
Over the same period, gun deaths rose, but by a considerably smaller
amount. Gun homicide rates have fallen in recent years, but those gains have
been offset by rising gun suicide rates. Today, suicides account for roughly
two out of every three gun deaths. One way of illustrating the shift is to look
at state-level data. In 2005, gun deaths outnumbered vehicle deaths in just two
states, Alaska and Maryland, plus the District of Columbia. By 2014, gun deaths
were greater in 21 states plus D.C. Medical ailments, such as cancer and heart
attacks, kill considerably more people each year than either guns or
automobiles.

Saturday, December 19, 2015

To paraphrase a well-known maxim, the road to
“disaster” is paved with good intentions. No doubt, the effort by prosecutors,
and lawmakers, to deal with the proliferation of sexually graphic photographs
delivered electronically has been with good intentions--yet some cases have
undoubtedly been a disaster.
As long as human beings have walked on the face of the earth, the younger
version of the species has been curious about the carnal aspects of life. That
hasn’t changed, nor will it ever. In this modern techno-driven era school-aged
children, adolescent and younger, can do things that were unfathomable only a
little more than a decade ago. A student can take a photograph with a cellphone
and immediately post that photograph on the Internet for literally all the
world to see.
When those photographs are sexually explicit and posted without the subject’s
consent, the conduct should be criminal and prosecuted to the fullest extent of
the law.
Sexting, which typically involves sending sexually explicit photos or messages
via cellphone, is a new phenomenon that emerged with the increased use of
cellphone cameras by teens.
When two consenting teens, exploring their sexuality, exchange photographs
through texting neither the police, nor the courts, should be involved.
The ridiculousness of subjecting the consenting teens to criminal liability is
heightened by the fact that 16 and 17-year-olds in most states are considered
adults in order to consent to sex. Therefore, it is legal for them to have
sexual intercourse with each other, but not to share sexually oriented
photographs of themselves with each other.
In North Carolina, 16-year-old high school sweethearts traded nude cellphone
pictures. There was no evidence of coercion or harassment. But under a literal
interpretation of state law, each had distributed child pornography.
This past February, prosecutors charged the two teenagers with the felony of
“exploiting a minor,” which could have brought them years in prison and decades
on the sex offender registry.
According to the New York Times, whether and how to charge sexting teenagers
has become “a quandary for prosecutors nationwide, forcing them to weigh when
to muster the harsh force of criminal justice, often with ill-fitting laws from
a pre-Internet era, and when to back off and let schools and families deal with
youthful indiscretions.”
According to a 2012 study in the Archive of Pediatric Adolescent Medicine 28
percent of teens reported having sent a naked picture of themselves through
text or e-mail and 31 percent reported having asked someone for a sext.
In Pennsylvania, a law enacted in 2012 provided more wiggle room for
authorities dealing with teenage sexters. A teen that transmits photos of a
minor 12 or younger will face felony child pornography charges. However, under
the new law, it is a summary offense, similar to the severity of a traffic
violation, for a minor older than 12 to electronically transmit any picture of
himself or herself, or to knowingly view or possess an image of another minor
older than 12.
As a result, in Pennsylvania if a 14-year-old texts a nude picture of himself
to his girlfriend, it is a summary offense. If his girlfriend has the picture
on her phone, she may also be charged as well.
Teen sexting has other consequences even if no criminal charges are filed.
Students who take, possess, or share sexts can run afoul of school rules.
Sharing private photographs electronically can cause lasting damage to a young
person’s reputation. When explicit images are shared the subject of those
images is often humiliated resulting in problems at school, with relationships
and even depression and suicide.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George
P.C. His book The Executioner’s Toll, 2010 was released by McFarland
Publishing. You can reach him at www.mattmangino.com and follow him on Twitter
@MatthewTMangino.

Friday, December 18, 2015

As the death penalty continues its slow demise--28
executions this year. It is important to realize if the death penalty
disappears, the battle will turn to a different form of execution, death by
life in prison.
In a recent article in the Lewis and Clark Law Review, Some Facts About
Life: The Law, Theory, and Practice of Life Sentences, Melissa Hamilton writes,
"life sentences occupy unique legal and political statuses."
For instance, life sentences are akin to capital punishment in likely ending in
death within prison environs, yet enjoy few of the added procedural rights and
intensity of review that capital defendants command. In contrast to term
prisoners, lifers cannot expect to reenter civil society and thus represent an
exclusionist ideological agenda. The paper reviews whether life penalties
remain justified by fundamental theories of punishment in light of new evidence
on retributive values, deterrence effects, and recidivism risk.
The next frontier for criminal justice reformers is life in prison.

Thursday, December 17, 2015

The number of people executed in the United States
this year dropped to the lowest level since 1991, as states impose fewer death
sentences and defendants in capital cases get access to better legal help, reported the Associated Press.

The Death Penalty Information Center, a nonprofit
organization that opposes capital punishment and tracks the issue, said 28
inmates were executed as of Dec. 15, down from 35 last year and far below the
peak of 98 in 1999.

Another 49 criminal defendants received death
sentences this year, down 33 percent from 2014 and the lowest number since the
early 1970s.

The numbers reflect a steady decline in death
sentences over the past 15 years and a broad shift in public attitudes that has
made capital punishment increasingly rare, said Robert Dunham, the group’s
executive director.

“What we’re
seeing is the cumulative effect of falling public support for the death
penalty,” Dunham said.

About 61 percent of Americans support the death
penalty in murder cases, according to a Gallup poll in October, but that share
has inched downward while opposition has crept up.

While capital punishment remains legal in 31 states,
only six states accounted for all the executions this year — Florida, Missouri,
Georgia, Oklahoma, Texas and Virginia. That’s the fewest since 1988.

Texas led the way with 13 executions, followed by
six in Missouri and five in Georgia. But Texas imposed only two new death
sentences this year, while Georgia and Virginia had no new death row inmates.

The total number of death row inmates nationwide is
now below 3,000 for first time since 1995.

A shortage of lethal injection drugs has meant de
facto freezes in several states, including Ohio and Nebraska. In Arkansas, a
judge halted executions of eight inmates amid a legal fight over whether the
state can keep secret the identity of manufacturers and sellers of its
execution drugs.

Oklahoma recently said it was halting all executions
until well into next year while officials investigate two botched lethal
injections and a third that was called off because the wrong drug was
delivered.

Earlier this year, the Supreme Court upheld
Oklahoma’s use of a controversial sedative in lethal injection executions, but
two justices said for the first time they think it’s “highly likely” the death
penalty itself is unconstitutional.

Death penalty opponents are hoping the high court
eventually will abolish the penalty as cruel and unusual under the
Constitution. Even Justice Antonin Scalia, a longtime defender of capital
punishment, told an audience this year that he wouldn’t be surprised if the
court invalidates the death penalty.

Another factor in the recent decline is improved
legal representation for defendants. Georgia, Texas and Virginia have all
created statewide capital-case defender programs staffed by attorneys who
specialize in those cases.

Since 1973, more than 150 people who had been
sentenced to death have been exonerated after presenting evidence of their
innocence. Six death row prisoners were cleared of all charges this year.

“There is a very significant relationship between
providing defendants good representation and the outcomes of capital cases,”
Dunham said.

Other factors cited in the decline of executions
include the high cost of death penalty prosecutions and states such as Texas
and Virginia now instructing juries that they have the option of sentencing
capital defendants to life without the possibility of parole.

Wednesday, December 16, 2015

In a 5-4 ruling in 2014, the U.S. Supreme Court allowed police to initiate traffic stops based solely
on anonymous tips. The Navarette v. California decision was so dangerous that Justice Antonin Scalia called it “a freedom-destroying cocktail.”

On August 23, 2008, Pravdo Navarette was stopped by
a California Highway Patrol. No police officer ever witnessed
Navarette driving in a way that would have indicated that he was impaired
behind the wheel of his truck. Instead, entire basis for the stop was an
anonymous phone call to police alleging that Navarette had driven
dangerously. The caller identified the make, model and license plate
number of the truck. Fifteen minutes later, a highway patrolman proceeded to
follow Navarette for five minutes before finally pulling him over.

Once officers had Navarette on the side of the road,
they observed that he was not intoxicated. However, officers began
fishing for reasons to search the vehicle. One officer reported smelling
the odor of marijuana. Police proceeded to search his truck, found a
bundle of cannabis, and then arrested both men in the vehicle.

Navarette’s legal team argued that “the initial stop
was unconstitutional because police did not have reasonable suspicion to stop
his truck.” The also argued that police did not have reasonable
suspicion to pull him over because they had not determined the identity or
credibility of the caller.

On April 22, 2014, the court issued its 5-4
ruling. Justice Clarence Thomas authored the majority opinion upholding
the initial stop based on the anonymous tipster’s observations. The U.S.
Supreme Court found that the Fourth Amendment rights of the two men had not
been violated, essentially because the anonymous caller was considered an
eyewitness; her tip was all that police needed to stop the motorists and
investigate them.

Tuesday, December 15, 2015

Ninth Circuit Court of Appeals Judge Alex Kozinski
— has recently published an article in the Georgetown Law Journal
providing 12 reasons we should worry about the criminal justice system. His
former law clerk and blogger Eugene Volokh has serialized the article for theWashington
Post. This is the third in a series of Judge Kozinski's
concerns with the criminal justice system, through the analysis of Mr. Volokh.

With the exception of DNA evidence forensic evidence has some serious shortcomings: “Spectrographic voice identification error
rates are as high as 63%, depending on the type of voice sample tested.
Handwriting error rates average around 40% and sometimes approach 100%.
False-positive error rates for bite marks run as high as 64%. Those for
microscopic hair comparisons are about 12% (using results of mitochondrial DNA
testing as the criterion).”

Other fields of forensic
expertise, long accepted by the courts as largely infallible, such as
bloodstain pattern identification, foot and tire print identification and
ballistics have been the subject of considerable doubt. Judge Nancy Gertner, for
example, has expressed skepticism about admitting expert testimony on
handwriting, canines, ballistics and arson. She has lamented that while “the
Daubert-Kumho standard [for admitting expert witness testimony] does not
require the illusory perfection of a television show (CSI, this wasn’t), when
liberty hangs in the balance — and, in the case of the defendants facing the
death penalty, life itself — the standards should be higher . . . than [those
that] have been imposed across the country.”
Some fields of forensic
expertise are built on nothing but guesswork and false common sense. Many
defendants have been convicted and spent countless years in prison based on
evidence by arson experts who were later shown to be little better than witch
doctors. Cameron Todd Willingham may have lost his life over it.

Monday, December 14, 2015

The evolution of the death penalty in Ohio is
nothing less than astonishing. Five years ago, Ohio was second only to Texas
with 10 executions in a single year. This year, Ohio did not carry out a single
execution. The state has not executed an inmate since Jan. 16, 2014 when Dennis
McGuire struggled and gasped for several minutes before succumbing to a
combination of drugs being used for the first time in the United States.

Executions are not the only thing plummeting in
Ohio. The number of capital murder indictments filed across the state since
2010 has dropped by 77 percent – just 19 capital indictments have been brought
this year, reported the Cleveland Plain Dealer.

However, that is not entirely surprising. In
Cuyahoga County, which has the second most capital convictions in the state,
there is a change in philosophy.

In 2013, Cuyahoga County elected a new prosecutor.
Tim McGinty is not only less likely to seek the death penalty but has written
to the parole board on behalf of a condemned inmate declaring that under his
leadership the office changed its approach to capital punishment.

McGinty alluded to the fact that a life sentence
without the possibility of parole is now a sentencing option, though it was not
25 years ago when the inmate was convicted.

Since 2010, the number of inmates sentenced to life
without parole has spiked 92 percent, according to the Plain Dealer. The Death
Penalty Information Center’s statistics show that the number of inmates
sentenced to death nationally has dropped 35 percent since 2010, when there
were 114 death sentences. Last year, there were 73.

National trend

The Ohio numbers mirror a national trend involving
the death penalty. Even though an October Gallup Poll showed that 61 percent of
the public still supports the death penalty, executions are at a 25-year low.

America’s last execution occurred Tuesday night in
Georgia. It was the 28th execution this year, nearly half the number carried out
in 2009. The number of executions this year is almost the same as the number of
fatalities from lightning strikes – 26 deaths by lightning.

It is an ironic statistic, as pointed out by
National Public Radio, when the Supreme Court briefly banned the death penalty
in 1972. Justice Potter Stewart, a former Ohioan, wrote “These death sentences
are cruel and unusual in the same way that being struck by lightning is cruel
and unusual.”

The death penalty returned in 1976, and by the 1990s
the number of executions soared – hitting a high of 98 in 1999 and ultimately
totaling more than 1,400 – but executions tailed off dramatically after 2000.

The death penalty has been under siege. A number of
states – Connecticut, Illinois, Maryland, New Jersey, New Mexico, New York and
Nebraska – have recently abandoned capital punishment. The governors of four
other states – Colorado, Oregon, Pennsylvania and Washington – have imposed
execution moratoriums.

New Hampshire abolished the death penalty this year
only to have the state’s governor rally to have the matter placed on the ballot
for voter consideration next year. If that is not strange enough, as lethal
injection drugs become more and more scarce, some states are looking for
alternatives to lethal injection. Utah is considering bringing back the firing
squad. Oklahoma allows for the use of a firing squad if lethal injection is
unavailable.

Missouri is considering the gas chamber, and the
electric chair is still available in eight states and has been used recently in
Virginia and Florida. Pennsylvania apparently has an ample supply of execution
drugs, although the state hasn’t involuntarily executed an inmate in over 50
years.

Tumultuous procedure

Ohio’s execution procedure has been tumultuous. The
state has used a three-drug, single-drug and two-drug protocol within the last
half dozen years to carry out lethal injection – some with questionable
outcomes. Ohio continues to strive for a lethal injection protocol that is
painless, effective and efficient – good luck.

Matthew T. Mangino is of counsel with Luxenberg,
Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was
released by McFarland Publishing. You can reach him at www.mattmangino.com and
follow him on Twitter @MatthewTMangino

Sunday, December 13, 2015

At a time of heightened concern over police
shootings, a new report estimates that people with mental illness are 16 times
more likely than others to be killed by police, reported the USA Today.

About one in four fatal police encounters involve
someone with mental illness, according to the report, released Thursday by the
Virginia-based Treatment Advocacy Center, which focuses on the needs of
people with serious mental illness.

The problem stems from a lack of police training, as
well as a lack of treatment for those with serious mental illness,
said John Snook, the report's co-author and executive director of the
Treatment Advocacy Center. In many cases, people with serious mental illness are
unable to get treatment until their behavior attracts the attention of the
police.

"If this were any other medical condition,
people would be up in arms," Snook said. "What we need to do is treat
the person before the police are ever called. This is a mental illness, but we
respond by calling the police and arresting a person."

Nearly 8 million Americans suffer from a serious
mental illness that "disorders their thinking," such as schizophrenia
or bipolar disorder, according to the report. On any given day, half of these
patients are not taking medications or receiving other care.

Saturday, December 12, 2015

Have you ever heard of Jay Dickey? In 1996, as a
member of Congress, Dickey authored a now infamous amendment to an otherwise
obscure appropriations bill. The Arkansas Republican’s name should be as
familiar to gun enthusiasts as Remington, Smith & Wesson and Kalashnikov.
Dickey, a self-proclaimed “point-man” for the National Rifle Association,
proposed a legislative amendment that removed $2.6 million from the Center for
Disease Control’s budget, the amount the agency’s injury center had spent on
firearms-related research the previous year.
Since the Dickey Amendment passed, the United States has spent about $240
million a year on traffic safety research, but there has been almost no public
funding for research on firearm injuries.
To no surprise, this year The Atlantic reported that guns now kill more people
under the age of 26 than do automobiles.
That’s not to mention the 353 mass shootings in the United States this year —
depending on the definition you use. According to the Dallas Morning News,
using any definition, the likelihood of being caught in a mass shooting is
exceedingly rare — but getting shot is not as rare as you might think. More
than 32,000 people are killed and more than 67,000 injured by firearms each
year in the United States.
The Dickey Amendment was passed in response to a 1993 study published in The
New England Journal of Medicine that found having a gun in the home increased
the risk of homicide in that home. In response to the study, the NRA lobbied to
shut down the CDC’s National Center for Injury Prevention, which had funded the
study.
The absence of research has left public health experts and policymakers with
little to work with as they attempt to craft new legislation to help slow
gun-related violence.
On Dec. 2, an organization known as Doctors for America, presented a petition
signed by more than 2,000 physicians in all 50 states demanding an end to the
Dickey Amendment.
“It’s disappointing to me that we’ve made little progress in the past 20 years
in finding solutions to gun violence,” Dr. Nina Agrawal, a New York
pediatrician told Think Progress. “In my career, I’ve seen children (sic) lives
saved from measles, Sudden Infant Death Syndrome, motor vehicle
accidents…because of federal scientific data and research. It’s frustrating
that the CDC is not permitted to do the same type of research for gun
violence.”
Even Dickey, has publicly expressed his regret for authoring the amendment.
During an interview with Steve Inskeep of National Public Radio he was asked,
“Did you intend to cut off all research on the effects of guns or gun ownership
in society?”
Dickey replied, “It turned out that that’s what happened, but it wasn’t aimed
at that. And it wasn’t necessary that all research stop. It just couldn’t be
the collection of data so that they can advocate gun control. That’s all we
were talking about. But for some reason, it just stopped altogether.”
In fact, after a 2009 study funded by the National Institute of Health found
that carrying a gun is not protection against being shot in an assault, Congress
expanded the language of the Dickey Amendment to apply it to all Department of
Health and Human Services agencies.
After the Sandy Hook elementary school shooting in Newtown, Connecticut, which
resulted in the murder of 26 students and teachers, President Barack Obama
attempted to undo the gun research ban by executive order and announced he
would push for $10 million in the 2014 CDC budget for gun research.
The money has not materialized. Congress refused to fund that research. Rep.
Carolyn Maloney (D-N.Y.) and Sen. Ed Markey (D-Mass.) have introduced bills
supporting the funding. The House of Representatives said no and the killing
continues.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George
P.C. His book The Executioner’s Toll, 2010 was released by McFarland
Publishing. You can reach him at www.mattmangino.com and follow him on Twitter
@MatthewTMangino.

Friday, December 11, 2015

Online sex offender statutes—not to mention press coverage, social analysis, education, parenting advice, and general fretting that goes with them—are built on nothing but fear, reported the Boston Review.The underlying assumption is that Internet communication is fundamentally different from other means of communication. But not just different, the laws suggest. It is more dangerous. Specifically, it is dangerous to children, and in a particular way: sexually. The stated intent of these laws is to protect children from “Internet predators”—even if those predators are themselves. But as a growing body of research shows, the Internet is not especially sexually dangerous for kids—not more dangerous than anywhere else. Online sexual solicitation of minors is rare and getting rarer. A comparison of three successive national surveys of kids aged ten to seventeen found that those receiving such come-ons dropped 50 percent from 2000 to 2010, to just 9 percent. At the same time, “the proportion of such crimes committed by offenders who use the Internet to meet victims is quite small in comparison to sex crimes against children overall,” according to a 2010 study published in the Journal of Adolescent Health and Medicine. During the period studied, the mid-aughts, there were 615 arrests for such offenses. Meanwhile, an estimated 14 million young people aged twelve to seventeen were accessing social media sites.The study is part of ongoing research on online sexual and criminal behavior conducted by the University of New Hampshire’s Crimes Against Children Research Center, considered a foremost authority on such matters. The researchers there also found that adults who meet minors online for sexual purposes “are not different or more dangerous” than those who seek sex with kids they already know, either online or on terra firma.Contrary to the image of the grizzly fifty-year-old satyr scattering emoticons across the screen like a middle-schooler, hardly anyone is deceiving anyone about their age or sexual intentions. In fact, the only people routinely lying about their identities are vice cops lurking in chat rooms posing as thirteen- or fourteen-year-olds. In the 2010 study of adult-minor sexual contacts through social media, almost three-quarters of the cases originated with investigators in sting operations, closer examination of which frequently reveals entrapment.Another finding: the dirty old men are not old, the child victims aren’t children, and the sex is usually not sex. The typical online solicitor is a young man, eighteen to twenty-five years old, chatting up a slightly younger person, fourteen to seventeen. Research published by the National Center for Missing and Exploited Children found that only 4 percent of online sex crimes against minors implicated older men. Similarly, models appearing in “child” pornography are mostly adolescents. Sensational coverage notwithstanding, porn videos may be made by the teen models themselves, who are seeking a sense of power and, of course, profit. Pornographic images of very young kids are rare. Not surprisingly, most of the cases of illicit “sex” initiated do not go beyond fingers on a keyboard. In one of those three national telephone surveys—this one encompassing 1,500 ten-to-seventeen-year-olds, conducted in 2005—only four youth had “physical contact [they] would call sexual” during face-to-face meetings with adults they met online.

Thursday, December 10, 2015

A report by the Bureau of Justice Statistics written by Susan M. Brumbaugh,RTI International, Scott Ginder,RTI International, Todd D. Minton, BJS Statistician, Harley Rohloff,RTI International, Hope Smiley-McDonald,RTI International has found that from 1999 to 2013, the number of inmates in local jails increased by 21 percent. The study presents state-level estimates of the number of inmates confined in local jails at year end 2013, by sex, race, and Hispanic origin. This report provides information on changes in the incarceration rate, average daily population, admissions, expected length of stay, rated capacity, percent of capacity occupied, and inmate-to-correctional officer ratios. It also includes statistics, by jurisdiction size, on the number of inmates confined to jail and persons admitted to jail during 2013. It features a special section on the 12 facilities that functioned as jails for the Federal Bureau of Prisons.

Highlights:

From 1999 to 2013, the number of inmates in local jails increased by 21%, from 605,943 to 731,570. During this period, the growth in the jail population was not steady, as the jail confined population peaked in 2008 at 785,533 then declined to its 2013 level. 

Nearly half (46%) of all local jail inmates were confined in jurisdictions holding 1,000 or more inmates in 2013, down slightly from 50% in 2006. 

Between 1999 and yearend 2013, the female inmate population increased by 48%, from approximately 68,100 to 100,940. The male inmate population increased by 17%, from approximately 537,800 to 630,620. 

The juvenile population (persons age 17 or younger) held in adult jail facilities in 2013 (4,420) decreased by more than half from its peak in 1999 (9,458).

Wednesday, December 9, 2015

Brian Keith Terrell was put to death at 12:52 a.m.
Wednesday for the 1992 murder of 70-year-old man in Georgia, reported the Atlanta Journal-Constitution.

Terrell accepted a final prayer and refused to
record a final statement, the Georgia Department of Corrections said in a
release.

The U.S. Supreme Court denied Terrell’s final appeal
shortly after 11 p.m. Tuesday, clearing the way for the death to proceed. But
it took an hour for the nurse assigned to the execution to get IVs inserted
into both of the condemned man’s arms. She eventually had to put one into
Terrell’s right hand.

Terrell winced several times, apparently in pain.
After all the witnesses were seated and a prayer was offered, Terrell raised his
head and mouthed, “Didn’t do it,” to Newton County Sheriff Ezell Brown, who was
sitting at the center of the front row.

Terrell’s execution marks the fifth lethal injection
the state has carried out this year, more than any other year since the state
first used lethal injection in 2001.

The 11th U.S. Court of Appeals declined his appeal
Tuesday evening; the Georgia Supreme Court turned down his appeal Tuesday
afternoon; the U.S. District Court did the same Tuesday morning; and the State Board of Pardons and Paroles denied clemency
Monday night.

Unlike a number of condemned men who preceded him,
Terrell, 47, did eat his last meal. But he had the same dinner served other
inmates at the Diagnostic and Classification Prison near Jackson: chicken and
rice, beans, rutabagas, turnip greens and cornbread.

As for visitors, only his pastor from Covington showed
up Tuesday. His mother, who has insisted Terrell is innocent, was absent.

In 1992, Terrell stole John Watson’s checkbook and
withdrew a total of $8,700 from the victim’s bank account.

Watson, a friend of Terrell’s mother, Barbara, told
her he would not press charges against her son if a substantial amount of the
stolen money was returned within two days. Instead, Terrell ambushed Watson as
he left his Covington house for a dialysis appointment.

Tuesday, December 8, 2015

Russell Bucklew and Ernest L. Johnson claim they are
too sick to executed in Missouri, according to the Kansas City Star.

Though 18 other Missouri inmates have been executed
over the past 24 months, Bucklew and Johnson have been spared a one-way trip to
the state’s death chamber, at least temporarily, while they pursue their unique
appeal argument.

Both suffer from medical conditions that their
attorneys argue could create painful reactions if authorities attempt to
execute them with lethal injection chemicals.

But to prevail on the argument that the inmates face
an unconstitutional risk of cruel and unusual pain, attorneys for the convicted
killers are required by previous court rulings to offer an alternative method
for their clients’ demise.

For Johnson, whose execution was stayed last month
by the U.S. Supreme Court, and Bucklew, who won a stay from the Supreme Court
in May 2014, the alternative proposed by their lawyers is the gas chamber.

A relic of Missouri’s capital punishment past, it
still is an authorized form of execution under Missouri law, although the state
no longer has a working gas chamber.

Bucklew’s attorneys also have raised a possible
second alternative of death by firing squad.

Although a firing squad is not authorized currently
by Missouri law, Bucklew’s lawyers said that they didn’t foresee “much trouble”
for lawmakers to pass firing squad legislation “considering the political
landscape” in the state.

According to the Death Penalty Information Center in
Washington, D.C., the traditional means of lethal gas execution involved
strapping an inmate to a chair in a sealed room.

Crystals of sodium cyanide were then added to a pail
of sulfuric acid to create a cloud of hydrogen cyanide gas.

Witnesses described evidence of “extreme horror,
pain and strangling.”

“The eyes pop. The skin turns purple and the victim
begins to drool,” one former California prison official reported.

Though Missouri’s gas chamber has not been used for
50 years, it still is housed inside a small building at the now-closed prison
in Jefferson City and is part of tours conducted by the Jefferson City
Convention and Visitors Bureau.

Monday, December 7, 2015

With the focus of the racist and pornographic email scandal moving from Harrisburg to Philadelphia, pressure is mounting on Philadelphia District Attorney R. Seth Williams, reported The Legal Intelligencer.

Over the past few weeks, state and local politicos have been calling on Williams to fire three prosecutors in his office involved in the 'Porngate' scandal that has been unfolding over the past year. Although Williams decided to transfer the three prosecutors out of the special investigations unit, attorneys have said the scandal is likely to continue and could affect some prosecutions being brought by Williams' office.

Media outlets have reported that Frank Fina will be transferred to the civil litigation unit, E. Marc Costanzo will be transferred to the appeals unit and Patrick Blessington will be transferred to the Post-Conviction Relief Act unit.

Fina, Costanzo and Blessington have been at the heart of the scandal that has ensnared numerous prosecutors and judicial officials, including state Supreme Court Justice J. Michael Eakin and former Justice Seamus P. McCaffery, who were both found to have sent or received numerous emails that were pornographic and offensive in nature.

"I don't think that the constituent groups who are upset about Seth Williams having these three on staff are going to get any less upset because he's reassigned them," Lindy said. "Does that mean that he should fire them? That's got to be a political decision that he makes. Make no mistake about it, this is all about politics."

Sunday, December 6, 2015

A 20-year-old who gets into a fight or is caught stealing faces serious jail time if convicted.
In a far-ranging policy speech about bail reform and juvenile justice, Connecticut Gov. Dannel P. Malloy recently said he no longer wants that to be the case, reported The Connecticut Mirror.
His proposal would divert thousands of people aged 18 to 20 from the adult corrections system and would instead treat them as juveniles. And he indicated that he wants to consider alternative ways to handle those under 25 who commit less-serious offenses.
Last year, 11,000 people aged 18, 19 or 20 were arrested in Connecticut. In nearly three-quarters of those cases a misdemeanor was the most serious offense, according to the Connecticut Judicial Branch. Another 19,800 people aged 21 to 24 were arrested.
Malloy said such a change would "wipe the slate clean" for low-risk offenders that have not matured entirely.
"Is it right that that 17 year-old can have a second chance but a 22 year-old cannot? This is the question that we should collectively answer," Malloy said.
He intends to propose a package of reforms to the General Assembly for its 2016 session, which convenes in February.
The changes Malloy proposed would make Connecticut the first state in the nation to raise the age for its juvenile justice system past 18. He said one inspiration for the idea came on a trip with to Germany, where offenders are treated as juvenile up to age 20.
To read more CLICK HERE

Saturday, December 5, 2015

California is taking on prosecutors who fail to
disclose information in criminal cases. The legislature passed a bill enhancing
sanctions for prosecutorial misconduct. Governor Jerry Brown signed the bill
into law in early October.
The law permits a judge to remove a prosecutor who withholds evidence from the
defense. Additionally, if other members of the prosecutor’s staff participated
or sanctioned the suppression of evidence, the court is authorized to remove
the entire office. The law requires the court to report violations to the state
bar, which has the authority to impose discipline on lawyers who violate their
code of conduct.
The rule requiring the prosecution to turn over evidence favorable to the
defense was cemented into law in 1963 in a case known as Brady v. Maryland.
Brady, as it has become known, provides that a prosecutor “violates due process
when he suppresses evidence favorable to the defendant, when that evidence is
material to guilt or innocence.”
In 2013, Judge Alex Kozinski, a member of the Ninth Circuit Court of Appeals,
wrote a scathing opinion about prosecutorial misconduct in California. He
recently told The Huffington Post “The (California) bill seems like a step in
the right direction . . . It seems to give a great deal of discretion to trial
judges, so its effectiveness will depend on the degree to which those judges
are willing to exercise that authority.”
California is by no means the only state experiencing some degree of misconduct
by prosecutors. One of the most egregious cases of prosecutorial misconduct
makes it clear that anyone can be the target of misconduct--or at least
overzealous prosecution. In 2008, Alaska Senator Ted Stevens was convicted of
corruption.
On April 7, 2009, Judge Emmet G. Sullivan of the United States District Court
for the District of Columbia unleashed a diatribe on the federal prosecutors
who sought and obtained Stevens’ conviction. Sullivan told a packed courtroom,
“In nearly 25 years on the bench I’ve never seen anything approaching the
mishandling and misconduct that I’ve seen in this case.”
Brendan Sullivan, the attorney who defended Stevens told National Public Radio,
“The extent of the corruption is shocking,” Attorney Sullivan says. “It’s the
worst misconduct we’ve seen in a generation by prosecutors at the Department of
Justice.”
The report that roiled Judge Sullivan was prepared by investigator Henry F.
Schuelke III. The 500-page report included a review of 128,000 documents and
interviews with prosecutors and FBI agents. The report shook the legal
community, as law professors described it as a milestone in the history of
prosecutorial misconduct.
However, earlier this year the Merit Systems Protection Board, an entity that
reviews discipline against civil servants, overturned the suspensions of the
Stevens’ prosecutors.
According to the Washington Post, the decision upheld a 2013 ruling by an
administrative judge that found that the Justice Department violated its own
rules when it suspended the prosecutors without pay for failing to turn over
evidence that could have helped Senator Stevens’ defense. One prosecutor lost
40 days of pay and another 15.
While the merit board did not clear the attorneys of wrongdoing, ironically it
found that the justice department committed a “harmful procedural error” in
doling out discipline to the two assistant U.S. Attorneys.
There are 3,144 counties, or their equivalent, in the United States. Each of
those jurisdictions has a prosecutor, elected or appointed. The vast majority
of those prosecutors are ethical men and women who are out to seek justice and
nothing more. The new California law and efforts in other states are not
targeting those prosecutors. The efforts nationwide to curb prosecutorial
misconduct are focused on a handful of prosecutors hell bent on a conviction at
any cost--including convicting an innocent person.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George
P.C. His book The Executioner’s Toll, 2010 was released by McFarland
Publishing. You can reach him at www.mattmangino.com and follow him on Twitter
@MatthewTMangino.

About Matt

An analysis of crime and punishment from the perspective of a former prosecutor and current criminal justice practitioner.
The views expressed on this blog are solely those of the author and do not reflect the opinions or postions of any county, state or federal agency.